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The Use of Prior Convictions after Apprendi

In Apprendi v. New Jersey, the Supreme Court announced the general rule that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Since Apprendi, most courts have read this language to mean that a defendant who contests the existence of a prior conviction for sentencing purposes is not entitled to a jury trial or to proof beyond a reasonable doubt on the fact of the prior conviction. On the other hand, courts have split as to the process that must have been afforded by the tribunal that rendered the prior judgment. Some courts have held that a judgment rendered by a nonjury tribunal may not be used to enhance the penalty for a subsequent offense. Other courts have held that a prior conviction produced by a nonjury tribunal may increase the penalty for a subsequent offense as long as the nonjury tribunal followed a reliable factfinding process.

In this article, I examine two settings: (1) the process for determining whether the defendant incurred the prior conviction asserted by the prosecution and (2) the process that must have been afforded in the tribunal that rendered the prior judgment. With respect to court determination of the existence of a prior conviction, I argue that the Constitution guarantees that the prior conviction be proven beyond a reasonable doubt and that the defendant be afforded a right to a jury trial. With respect to the process resulting in a prior conviction or adjudication, I suggest that the prior tribunal must have employed the reasonable doubt standard, but it need not have afforded a right to a jury trial. A requirement of proof beyond a reasonable doubt would invalidate the use of prior convictions rendered by foreign tribunals that employ lesser standards of proof, and it would invalidate the use of civil adjudications that are based on the preponderance of the evidence standard.